When PsyStar announced they would be offering their own Macintosch clone, pre-installed with Apple's Mac OS X Leopard, they opened up a whole can of worms. Despite the fact that the company itself was shrouded in mystery and dubiousness, the possible implications of their actions sparkled an interesting debate here on OSNews as well as other discussion venues: can PsyStar and its users just discard Apple's End User License Agreement for Leopard? Instead of relying on my own limited layman's understanding of Dutch Common Law, I decided to contact Dutch legal experts, and ask for their opinions on Apple's EULA, and EULAs in general.

Please note that whatever is said below is based on the information given by Dutch legal experts with proper credentials. I'm not talking about uncle Jim who has a brother-in-law who happens to be married to a retired lawyer. The information below comes from active Dutch lawyers, and consequently, are only applicable in The Netherlands.

Sources

In The Netherlands, it is quite common to have 'legal insurance' (by lack of a better term). It's called rechtsbijstandverzekering, which means something along the lines of 'justice assistance insurance'. This insurance guarantees that you will be given legal assistance in the form of funds, legal experts, and/or lawyers whenever necessary (granted the case in question falls within the scope of the insurance). I have fairly extensive legal insurance, which also grants me the right to ask for the opinions of legal experts even when there is no case. In other words, I can bug legal experts for free with trivial questions. This is source number one for my findings below, and they remain anonymous.

Source number two is Arnoud Engelfriet, a Dutch internet lawyer and ICT legal expert. His weblog Ius mentis details and explains various technology-related legal issues - a wealth of information on all sorts of legal issues we commonly discuss on OSNews. I have included several links to his findings in this article, even though they are written in Dutch. I would like to thank Arnoud for his detailed and easy-to-understand articles on Dutch technology-related legal issues. His information has been invaluable for this article.

The dreadful EULA

First, let me explain what an EULA actually is. The End User License Agreement details how you may use the software it applies to. When you go to the store to buy Super Awesome Garden Designer 8.0 Ultimate Edition, you do not actually buy the software in question - you buy the right to use said software. Software falls under copyright law, and as such, the author must grant you the right to use that software - and for that right, you pay money.

In The Netherlands, an EULA constitutes as a contract, and as such, you need to treat an EULA according to Contract Law. According to Engelfriet, this means there are four important steps in the process of establishing the legal power of an EULA: the formation of the contract, the offering of the contract, nullification of terms in the contract, and possible interference of other, possibly higher laws. Let's start at the beginning.

Formation

For a contract to actually be a contract in the first place, there needs to be a party offering something, and a party accepting that offer. In the case of software, the offered something is the right to use that software. If you acquire software via legal means, you technically don't need an EULA at all.

Software distributors solved this issue by forcing you to agree or disagree with the EULA during the installation process, before you can actually use the software - disagreement terminates the installation procedure, meaning you can't use the software. According to Engelfriet, this is a legally sound construction in The Netherlands, as the distributor is not legally obliged to offer you a choice between the terms of the EULA, or the normal user rights regarding software as defined by article 45j and 45k of Dutch copyright Law (you are allowed to run software on one machine, and you are allowed to make a backup).

So, a software distributor may force you to agree or disagree with the EULA, even of if disagreement means you can no longer use that software. This seems awkward, and brings us to step two.

Offering

According to the anonymous source, the terms of an EULA are the same for all customers, and as such, they legally constitute as 'algemene voorwaarden' (conditions/terms of use). Engelfriet agrees with this position. However, for conditions of use to be valid in The Netherlands, they have to meet certain criteria.

The first criterion is that the conditions of use must be presented prior or during the making of the agreement; in case of software bought in retail stores, it would be easy to argue the agreement is made during the actual purchase, which would mean that if an EULA is not presented then, it would be invalid.

However, there is a catch. To make sure that conditions of use (think: "all customers must wear a pink hat while in this store") do not have to be specifically presented to each user, Dutch law states that telling a user that the conditions of use can be found at location xyz, without specifically stating the conditions themselves, is also a valid way of presenting conditions of use, regardless of whether the user actively agrees with the conditions or not. In the case of an electronic sale, there is an extra requirement (besides presenting them electronically): the user must have the ability to save the conditions of use (to a file).

The second criterion states that the conditions of use must be presented in the right way. As Engelfriet explains:

The main rule is that you should get a piece of paper on which the EULA can be found. When an EULA is only presented on-screen, it constitutes as an electronic agreement. Law then states that the EULA must be presented in such a way that it can be saved so that it is accessible at a later time. A .pdf or .doc file included in the zipfile satisfies this demand.

This last demand is crucial. The ability to copy/paste the text into a separate file does not satisfy this demand, as it requires too much effort on the user's end. If there is no straightforward way to reread the EULA at a later date, it is invalid.